Seeking directions from the Court in the period 1 March to 1 September 2017 – what are liquidators and administrators to do?

As many practitioners will be aware, the changes to the Corporations Act 2001 (Cth) implemented by the Insolvency Law Reform Act 2016 (Cth) (ILRA) commence in two tranches – one part on 1 March 2017, and the other on 1 September 2017. This appears to be a perfectly acceptable approach, answering industry concerns about preparedness for the reforms. However, somewhere in the drafting, a raft of critical provisions enabling liquidators and administrators to seek directions from the Court seemingly fell into an abyss of daisy-chain drafting, such that many practitioners have been left quite perplexed as to whether the powers under the following sections of the Corporations Act presently exist:

  1. section 447D (administrator may seek directions);
  2. section 479 (exercise and control of liquidator’s powers); and
  3. section 511 (application to court to have questions determined or powers exercised).

This confusion is compounded for anyone opening their 2017 edition of the Corporations Act, or popping online to check AustLii or, most surprisingly, the Federal Register of Legislation – all of which indicate the above sections were repealed on 1 March 2017.[1] No wonder then that court registries have been rejecting applications for directions and indeed in several recent decisions courts across Australia have proceeded on the basis the sections no longer exist.[2]

However, what all of this overlooks is that by further amending instrument, the Corporations and Other Legislation Amendment (Insolvency Law Reform) Regulation 2016 (Cth) (COLAR), certain amendments enacted by ILRA are deferred including, relevantly, the repeal of ss 447D, 479 and 511 of the Corporations Act.

COLAR, Schedule 2, item 1 amends the Corporations Regulations 2001 (Cth) by the addition of a new Part 10.25,[3] which defers the repeal of the disappearing sections of the Corporations Act so that the repeal applies only:

“in relation to external administrations on and after 1 September 2017.”

Quite separately, the new power to seek directions introduced by ILRA can be found at s 90 15 of the Insolvency Practice Schedule (Corporations) to the Corporations Act, which empowers the Court to make “such orders as it thinks fit” in relation to external administrations. The Court’s power may be exercised on its own initiative, or on application by an interested party under s 90 20, including “a person with a financial interest”, ASIC, an officer of the company and the committee of inspection. The new powers are deemed to have commenced on 1 March 2017.[4] Curiously, neither section appears to have been deferred, giving rise to a duplication with the pre-existing powers yet to be repealed.

So, the long and the short of it (arguments about the validity of the subordinate regulations amending ILRA as an Act of Parliament aside[5]) is that:

  1. the status quo remains in relation to the power to seek directions from the Court under ss 447D and 511, and the exercise and control of liquidator’s powers under s 479 of the Corporations Act;
  2. the route to that position is a rather painful journey through the cross-referencing of schedules to schedules in ILRA and COLAR noted above;
  3. the convoluted drafting of the new regime, and its part-deferral have together led to the sections in question being inaccurately deleted from the Federal Register of Legislation (and AustLii);
  4. additionally, the new powers under ss 90 15 and 90 20 of the Insolvency Practice Schedule (Corporations) have already commenced, meaning there is presently a “double dip” option available to practitioners seeking the Court’s direction in fresh proceedings;[6] and
  5. it is incumbent upon practitioners to guide the Court through the deferred repeal enacted by COLAR in any application relying upon the pre-existing powers under the old “yet to be repealed” sections.

The one thing of which you can be sure (other than death, taxes, and that evading the latter will eventually catch up with you no matter whom you might know at the ATO) is that confusion is likely to persist until 1 September 2017. Meanwhile, I would implore practitioners to be diligent, not to believe everything you read (even if it is printed in the Federal Register of Legislation) and take comfort in the knowledge that, at least for the next few months, we can continue to operate under the tried and true regime for seeking directions from Court.